40 S.W.2d 142 | Tex. Crim. App. | 1931
Lead Opinion
The offense is unlawfully transporting intoxicating liquor; penalty, confinement in the penitentiary for a period of two years and six months.
The appellant was arrested by Hickman, the chief of police of the city of Colorado. Hickman's testimony is in substance as follows: He saw the appellant about eleven o'clock at night. The appellant was driving an automobile and had three other men with him in the car. Delaney, another officer, said to Hickman: "Look at that car. It is loaded." It was parked on the street. The appellant started the car and drove off. He was followed by Hickman and Delaney. From Hickman's testimony we take the following: "After he turned down the street we walked across the street and got in my car. * * * We took after him and headed him off this side of Lonewolf Bridge. * * * We jumped out and Jack started to stop him, and he began to back up like he was going to try and get away. * * * We asked him where he lived * * * and who had the key to the car. He said he lived in Sweetwater *370 and that the car belonged to a man in Sweetwater. Jack walked around to the back and raised it up. * * * I never did see in the back at all. Jack was just standing there and nodded his head, and I said, 'How much have you got, pardner', and he said, 'Thirty gallons of red rye whisky'."
Appellant said that the boys with him had no interest in the matter; that he picked them up at Big Springs. He said: "I am the man." Appellant and the men were all arrested by Hickman and Delaney. After putting the appellant in jail, his car was searched and a number of jars containing whisky were found in the back of the car. The containers were introduced in evidence.
Appellant introduced no testimony but contends that the court erred in admitting in evidence the statement detailed above. The grounds of objection are as follows: "For the reason that the defendant was under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were officers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whereby said Hickman and Delaney were justified in searching said car, and the defendant therefore respectfully asks the Court to determine that probable cause did not exist for the search, as has been testified to here, and therefore said search is contrary to article 1, section 9, of the Constitution of Texas, as well as any and all other laws regarding the searching without a search warrant of the State of Texas and the United States."
The opinion is expressed that the presence of intoxicating liquor in the possession of the appellant was learned through a search of his automobile without "probable cause" as that term has been defined. The subesquent admission by the appellant that he possessed intoxicating liquor in the car added nothing material to the knowledge of the officer who, without a search warrant and without probable cause, had lifted up the back of the car in which the appellant was riding and discovered the presence of whisky. At the time the appellant's car was stopped by the officers they were guided by nothing more than bare suspicion. One of them said, "It is loaded." It had four men in it and it was evidently loaded to that extent. On the subject of stopping an automobile upon the public highway and searching it without probable cause, Chief Justice Taft of the Supreme Court of the United States, in the case of Carroll v. United States,
"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. * * * Those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent *371 official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
"The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.
"We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction." Odenthal v. State,
It is true that the officer who raised the back of the automobile and discovered the presence of liquor was not the one used by the state as a witness. The two were acting together in stopping the automobile and searching it. After the appellant's car had been obstructed so that it could not proceed, one of the officers engaged in a conversation with him while the other searched his car. The officer who made the search nodded to the one in front. The one in front then asked the appellant how much whisky he had, to which he replied that he had thirty gallons. Numerous cases in point will be found in the textbooks and decisions in which the courts of this and other states have, under similar facts, held that the stopping of an automobile upon the highway and searching it is illegal. Those cases cited by our own courts are the following: Deavers v. State, 111 Tex.Crim. Rep.,
The facts in the present case distinguish it from that of Carter v. State, 113 Tex.Crim. Rep.,
In Young's case, supra, an officer, in the capacity of a trespasser, stepped upon the running-board of the appellant's car. The officer discovered nothing in the car. Appellant got out of the car, however, and after walking some distance threw some bottles into a ditch. This was observed by the officer, who went to the ditch and got the bottles which contained whisky. His testimony was held admissible for the reason that it was not the result of the trespass, and he had not put the accused under arrest at the time. In each of the cases mentioned above the discovery of the liquor was the result of the acts or declarations of the accused and was not the result of the illegal search. The same may be said of the case of Owens v. State, 112 Tex.Crim. Rep., in which after a collision between the appellant's car and that of the officers, the appellant got out of his car and carried the whisky on his person. After he got out of the car he dropped a bottle of whisky in the presence of the officers. Observing this, the officers acted upon probable cause for searching the car in which they found a quart of whisky.
The case of Swanson v. State, 113 Tex.Crim. Rep.,
The judgment is reversed and the cause remanded.
Reversed and remanded.
Concurrence Opinion
The rule is well understood and often recognized by the court that a bill of exception containing a general objection to testimony, part of which is admissible, is insufficient to manifest error if it does not single out the inadmissible portion of the testimony. However, the rule is not thought to be applicable here. The question involved is, was the criminative testimony of the officers admissible? This question turns upon whether the officers searched appellant's car without probable cause. To present the question of probable cause all the recitals of facts contained in the bill are deemed necessary. After setting out the evidence in detail in the bill it recites that the evidence was objected to, "For the reason that the defendant was under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were officers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whereby said Hickman and Delaney were justified in searching said car, and the defendants therefore respectfully ask the court to determine that probable cause did not exist for the search, as has been testified to here, and therefore said search is contrary to article 1, section 9, of the Constitution of the State of Texas, as well as any and all other laws regarding the searching without warrant of the State of Texas and the United States."
It has been held that "* * * when the court has determined that probable cause existed for the search of an automobile, the facts upon which he predicated his ruling should be brought before this court in proper manner, if a review of such action is sought." McPherson v. State, 108 Tex.Crim. Rep.,
In drawing the bill of exception under consideration appellant was evidently attempting to bring himself within the rule last announced. The bill would have been defective if it had not set out, not only the evidence upon which probable cause was thought to be predicated, but also the evidence which was secured as a result of the search.
Being in accord with the conclusion announced by Presiding Judge Morrow in his opinion reversing the judgment, I record my concurrence therein. *374
Dissenting Opinion
I cannot agree to a reversal of this case. But one witness testified. His testimony fully made out a case of transporting intoxicating liquor on the part of appellant. Same showed appellant to have been driving on a public road in a car which contained sixty half-gallon fruit jars of whisky. Appellant offered no testimony.
We find in the record only one bill of exception which sets out and complains of the following testimony:
"I stated that myself and Jack Delaney were standing in front of the Colorado National Bank, and Jack called my attention — he says, 'Look at that car coming yonder,' he says, 'It is loaded.' After he turned down the street we walked across the street and got in my car. The car was headed east and my car was parked over by the City National Bank, so when we saw this car going down the street we went across the street and got in my car and took after his and headed him off right this side of Lonewolf bridge, and he was just barely going, on the Bankhead highway, and we jumped out and Jack started to stop him and he began to back up like he was going to try and get away, and about that time I got out, about that time we jumped out and asked him where he lived and he said 'Sweetwater,' and we asked him who had the key to the turtle back and he said, 'A man at Sweetwater,' I says, 'Who does the car belong to,' and he says, 'To the man in Sweetwater.' And Jack walked around to the back and raised it up, and I was still standing there talking to him — I never did see in the back at all, and Jack was just standing there and nodded his head, and I says, 'How much have you got, pardner,' and he said 'Thirty gallons,' I asked him and Jack nodded his head and I says, 'How much have you got, pardner,' and he says, 'Thirty gallons of red rye whisky.' And he said, 'These boys in here with me, they have not got anything to do with it,' he says, 'I picked them up either at Big Springs or right this side of Big Springs,' he says, 'I just picked them up' and he says, 'I am the man.' That was the defendant that made that statement. The defendant was driving the car. I do not believe there was anything else said right there at the time by the defendant, not that I recall. I then got my handcuffs and shackled the two boys that were with this fellow, and Jack brought them on in my car, and I took Williams and brought him on to jail and locked him up. I did not say that Jack Delaney brought the car the defendant was driving, no. He drove my car and the two boys that were with him. I came in the defendant's car. As to what we did when we got to jail: I forgot to say that we searched them for a gun, after he said he had thirty gallons, and when we got over to the jail house, when they got out of the car, I said, 'Is there anybody you want to notify,' and he wrote a name down and told me to notify this fellow at Sweetwater — *375 I believe his name is Curtis Tidwell, Sweetwater, Texas, that is, I know he wanted me to notify Curtis Tidwell, Sweetwater. We did make a search of the car the defendant was driving, after we got to the jail. When we searched the car we found containers — I think it was twelve of those fruit jars to the box, and there was five of those containers packed back in the back and close up to the seat, fruit jar containers. There were five of those boxes, yes. As to how much each contained: I just looked at two, they were full up, every one. I turned the stuff in the car over to Mr. Kuykendall. The size of those fruit jars I think is two quarts, a half gallon. The size of a fruit jar counsel exhibits to me is the size of the fruit jars I testified were in the car, yes. There was twelve of those fruit jars per case, and five cases. Sixty half gallon fruit jars were contained in that car. The four fruit jars that are upon this table here were in that car. They are full. I have smelled and tasted the contents of those jars. The contents of those jars smelled and tasted like whisky. Those jars contained whisky. The remainder of that whisky is in the jail. The defendant was arrested and stopped near the Lonewolf bridge and the whole transaction that I have testified about occurred in Mitchell County, State of Texas."
No particular part of said testimony was pointed out or specified in said bill. That said bill of exception was too general, and that considerably more than half of the testimony objected to was patently competent and admissible, is apparent from a reading of said bill.
There is no better settled rule of practice, nor one that has been more consistently upheld by every judge who has been on this bench from the beginning, than that of a bill containing a general objection to testimony, a part of which is admissible, is insufficient to manifest error if it does not single out the inadmissible portion of the testimony. In Gaines v. State (Texas Crim. App.),
In Payton v. State, 35 Tex.Crim. Rep.,
In Ortiz v. State, 68 Tex.Crim. Rep.,
In Tubb v. State, 55 Tex.Crim. Rep.,
In Rucker v. State (Texas Crim. App.),
In Smith v. State, 92 Tex.Crim. Rep.,
Again in White v. State, 113 Tex.Crim. Rep.,
In Solosky v. State, 90 Tex.Crim. Rep.,
Again in Dixon v. State, 91 Tex.Crim. Rep.,
Opinions of Judge Martin of our Commission, on the same subject, will be found in Jones v. State,
The writer of this opinion has himself in many cases upheld what he regards as the well settled law of this state of too long standing to be disturbed. Instances of his opinions are Collier v. State, 110 Tex.Crim. Rep.,
There being but the one bill of exception, and it being in such condition as to that it should not be considered, I see no reason why this judgment should not be affirmed. My brethren being of a different mind, I have no option but to record these conclusions and note my dissent. *378